Image of Do whistleblower protection laws bar associational discrimination or associational retaliation?

Do whistleblower protection laws bar associational discrimination or associational retaliation?


Associational Whistleblower Retaliation

Associational discrimination occurs when an employer discriminates or retaliates against an employee based on the employee’s association or affiliation with another employee who engaged in or who the employer believes engaged in protected activity.  Perez v. Lloyd Industries, Inc., 399 F. Supp. 3d 308, 319 (E.D. Pa. 2019) (citing Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1189 (1st Cir. 1994)).  This well-established doctrine in Title VII jurisprudence has been applied in whistleblower retaliation cases and the text of some whistleblower protection laws expressly prohibit associational retaliation.  See, e.g., Occupational Safety and Health Act of 1970, § 11(c), 29 U.S.C. § 660(c).

Under Title VII’s broad anti-retaliation provision, an employer is prohibited from retaliating against an employee for engaging in protected activity if that retaliation “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Thompson v. North American Stainless, LP, 562 U.S. 170 (2011) (quoting Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). In Thompson, the Supreme Court held that if the plaintiff could prove that an employer fired them in retaliation for their fiancé filing a charge of discrimination, Title VII’s anti-retaliation provision would provide a remedy. 562 U.S. at 173-74.

The Court held that a reasonable employee might be dissuaded from filing a charge of discrimination or engaging in other protected activity if she knew her fiancé would be fired in retaliation for her doing so. Id. at 174.  Although the Court noted that firing a close family member as an act of retaliation is proscribed by Title VII and taking a less serious adverse action against an acquaintance likely would not, it declined to further define which relationships and actions would merit protection under Title VII.  Id. at 175. Employment relationships, personal relationships, and the severity of various acts of retaliation are fact-dependent, the Court explained, so associational retaliation must be assessed on a case-by-case basis. Id. (citing Burlington, 548 U.S., at 69).

An employee need not have associated with someone who actually engaged in protected activity while also an employee to have a valid claim for associational discrimination.  Perez, 399 F. Supp. 3d at 319.  For example, in Perez v. Lloyd Industries, Inc., the court held that an employer engaged in associational discrimination where the plaintiff employees associated with an ex-employee who engaged in protected activity after the end of his employment. Id.  Because the employer wrongly believed that the former employee engaged in protected activity while he was still employed, the plaintiffs stated a claim for associational discrimination.  Id. at 319-20.  Therefore, a plaintiff may have a claim for associational discrimination where her employer discriminated against her because of her connection with someone the employer believes engaged in protected activity while still an employee – regardless of whether the employer’s suspicion is mistaken.

For additional examples of associational retaliation cases, see Reich v. Cambridgeport Air Systems, Inc., 26 F.3d 1187, 1188-89 (1st Cir. 1994) (holding no reversible error in the lower court’s finding that the complainant’s employment was terminated in violation of Section 11(c) of the
Occupational Safety and Health Act because of his connection with another employee who had made protected complaints); NLRB v. Advertisers Mfg. Co., 823 F.2d 1086 (7th Cir. 1987) (holding that an order of reinstatement of a supervisory employee under the National Labor Relations Act was valid because there was substantial evidence that the supervisory employee was fired in retaliation for her son’s union activity); Moghadam v. Department of Veteran’s Affairs2020 MSPB LEXIS 2221 (2020) (holding that the Whistleblower Protection Act of 1989 “prohibits an agency from taking a
personnel action against one person because of his relationship with another employee who has made a protected disclosure”) (citation omitted).

Whistleblower Retaliation Lawyers

If you have suffered retaliation for whistleblowing, call our experienced whistleblower lawyers today at 202-262-8959.  Whistleblower retaliation can take many forms and can exact both a financial and emotional toll on the whistleblower.  Federal and state whistleblower retaliation laws provide a wide range of remedies, including lost wages, compensatory damages, and punitive damages.





Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Katherine Krems represents employees in discrimination, sexual harassment, and whistleblower retaliation cases. She is focused on finding creative solutions and maximizing her clients’ recoveries. Prior to law school, she worked on policy reforms in Congress to strengthen the rights of workers, women, and marginalized groups.